Detainees Gain Right to a Lawyer in Byzantine Immigration System

As we’ve written in the past, the immigration system is a Byzantine area of the law that takes a highly specialized lawyer to navigate. Unfortunately for those detained, sometimes for years on end in prison-like conditions, there is no right to an attorney in immigration court—or at least there wasn’t up until yesterday.

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A federal court ruling affecting Washington, California and Arizona has opened the door on the right to representation by stipulating that lawyers (or accredited professionals) must be provided for detainees with mental disabilities.

The ruling stems from a class action suit filed in California by the ACLU . Originally, the case pertained to just one individual. But then organizations working in Washington and Arizona, both states with some of the country’s largest immigrant detention facilities, got involved, explains Jorge Baron, executive director of the Northwest Immigrant Rights Project.

Baron says he and his attorneys had frequently observed mentally disabled immigrants in court. “An immigration judge would ask a person where they were from, and the person would just be making noises, not understanding what was happening,” he says.

His organization helped get certification for a class of plaintiffs that includes immigrants here. Among them is Aleksandr Khukhryanskiy, a Ukrainian native who came to the US as a refugee in 1998. He was eligible to become a permanent legal resident, but never took advantage of the opportunity, perhaps because of his seriously troubled mental health.

In 2010, the Department of Homeland Security sought to have him deported, citing a 2005 conviction for attempted assault and robbery. At the time, living on the streets of Portland, he had tried to steal some wine from a store, according to Baron. The feds brought him to the Northwest Detention Center in Tacoma.

Medical staff there recognized that Khukhryanskiy had problems. Legal papers cite this log entry from a detention center clinic:

Patient with paranoid schizophrenia brought down to medical for danger to self. He is banging his head extremely hard to the point that he will injure himself and was yelling....

Another log entry quoted Khukhyanskiy talking about the “voices in his head” and reported that he had placed a cord around his neck. He told medical staff: “I need to be released. I am going mad here!!!”

Still, he was left to fend for himself in immigration court. And when a judge asked him if he was afraid to return to the Ukraine, he answered no, that he would in fact like to be deported, although he later stated that he didn’t understand anything that was going on.

The judge ordered him deported anyway, at which point NWIRP got involved, petitioning for another hearing. Ultimately, after more than two years of detention, a judge recognized his eligibility for permanent residency—something Baron says the government should have known all along--and he was released.

Yesterday’s ruling by U.S. District Court Judge Dolly Gee means people like Khukhryanskiy will get some help in several states—and possibly nationwide. On Monday, in anticipation of the ruling, the feds announced that they would be developing policies to assure representation to all mentally disabled detainees determined to be unable to represent themselves.

Will this step lead to broader representation in immigration court? “It’s certainly a goal we have long term,” Baron says. In the mean time, he notes that the landmark, bipartisan immigration reform bill introduced recently in Congress would provide lawyers for one other group of detainees: children.